Court ‘packing’ proposals to counter Trump getting serious legal and scholarly attention

Through the machinations of Senate Majority Leader Mitch McConnell, the Russian asset in the White House has already secured two Supreme Court appointments and is on track to put his stamp on 40 percent of the whole federal judiciary. In the process, the Senate’s constitutional advise-and-consent role has been thrown entirely out the window by McConnell. This week, McConnell will jam through the seventh nominee for a circuit court vacancy over the objections of Democrats from those nominees’ home states. We have two arguably illegitimate Supreme Court justices—one whose seat was stolen from President Barack Obama and his nominee Merrick Garland, and one who had credible attempted rape allegations leveled against him, not to mention multiple instances of lying to Congress and some very suspect financial dealings.

That’s going to have to be reckoned with when and if Democrats retake the Senate and the White House. Former Attorney General Eric Holder, not a wild-eyed liberal by any means, thinks one option Democrats have to consider is adding seats to the court. “Given the Merrick Garland situation, the question of legitimacy is one that I think we should talk about,” Holder said. “We should be talking even about expanding the number of people who serve on the Supreme Court, if there is a Democratic president and a Congress that would do that.”

We should also be talking about the fact that what are assumed to be lifetime positions on the federal courts aren’t actually that. The Constitution says “both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.” The Congress gets to determine what “good behavior” means, and the kind of politicking we regularly see from conservative justices is not that. They need to consider both diluting the power of Trump judges by creating new seats, and to make the possibility of impeaching judges just that—a political possibility.

That’s what activists and the new group Demand Justice are working toward.

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